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​This past July my wife and I had the opportunity to hike a portion of the Camino de Santiago in Spain. For eight days we walked an average of 25 km per day in 40-degree Celsius heat. While the experience was physically challenging, it was spiritually rejuvenating and rewarding.

On our way out of Torres Del Rio we passed a rock garden where fellow “perigrinos” (“perigrino” is the Spanish word for “pilgrim”) had left messages on scraps of paper wedged under stones. One note caught my attention: “In the moment, take a moment.”

Disconnected from work, my iPhone and the frenetic pace of Toronto, I was immersed fully in the moment.

I have written in the past about how “being present” (or, in the moment) is the single-most important ingredient I bring to a mediation. Pre-mediation planning and a thorough review of the parties’ materials should be central to every mediator’s preparation. What separates good mediators from the great ones is the ability to be fully engaged, focused, connected and responsive to the fluid needs of the participants. Accomplishing that requires mindfulness.

In this piece, I explore what it means to be mindful and the important role it plays in my mediation practice.

WHAT MINDFULNESS LOOKS LIKE

Jon Kabat-Zinndefines mindfulness as “[…] awareness that arises through paying attention, on purpose, in the present moment and non-judgementally.”

Umbreit and Armour suggest that mediators need to “clean away the clutter” from their minds before they can listen and connect fully. Joel Lee, a law professor at the University of Singapore, suggests in his article, Mindfulness and Mediation, that parties can sense when a mediator is emotionally unbalanced or stressed.

Mediators are no different than anyone else. We struggle with managing work/life balance. But, when parties arrive at mediation they deserve and expect a mediator who is fully attentive and focused on their needs.

When I lose my “centre”, I try to take time out to reflect, recharge and re-set so I’m equipped to deliver my best self at the mediation table. A brisk walk, a favourite yoga pose or meditative deep breathing help bring me back to my centre.

Being connected to one’s governing values, beliefs and highest purpose

During my time as a litigator, I often thought that my best qualities were underutilized. While I enjoyed the challenge of being an advocate, I had discovered that my problem solving skills and passion for helping others through conflict was the perfect fit for mediation practice.

A common trait amongst mediators is a commitment to helping others and making the world a better place, one dispute at a time. The fulfillment I derive from empowering those in conflict to work towards resolution energizes and sustains me and I strive to bring that positive energy and authenticity to every mediation process I manage.

Making contact with the humanity of the participants

The late Dr. Stephen Covey, author of The 7 Habits of Highly Effective People, once wrote, “[…] most people listen with the intent to reply, not to understand.” However, in order to “deeply understand another human being,” Covey suggests we must “seek first to understand, then to be understood.”

The mindful mediator values the power of active and empathetic listening to establish a human connection with the participants. It is only through establishing this connection that the mediator can gain the participants’ trust and acquire insight into and a deeper understanding of their hopes and concerns arising out of the conflict.

Being congruent

Umbreit and Armour define “congruence” as being emotionally honest with yourself so “there is a consistency in your words, feelings, body and facial expressions and actions.” Consistency can only be achieved when your ideal self is congruent with your actual behaviour. A mediator who promotes the importance of active listening but doesn’t model that behaviour through their own actions is not practicing mindfully.

IN THE MOMENT, TAKE A MOMENT

Jumping from moment to moment has become the new normal. The most popular apps on our phones are those that let us scroll through snapshots of moments quickly and without much thought. But, can we truly be in the moment if we allow ourselves to be distracted by the incessant beeps and buzzes of cell phones and competing priorities?

My experience on the Camino reminded me of the importance of dialing back and experiencing each moment – both as a means of recharging and recalibrating and as the basis for affirming that a commitment to mindfulness rests at the core of my mediation practice. I don’t have it all figured out yet, but I continue to mindfully work at it.

In a recent blog post I focused on ten signs that your mediation may be headed for trouble. One of those indicators was power imbalance.

As a mediator, I am often faced with imbalances caused by a variety of factors: relationship dynamics between the disputing parties, a lawyer having more experience, expertise or knowledge than opposing counsel, or a party being better prepared or more knowledgeable about the facts of the case than another. Unchecked imbalances can have a significant impact on the outcome of a mediation. But, how much can a mediator do to redress an imbalance without compromising their neutrality?

WHEN THE SCALES ARE TIPPED​The following exercise exemplifies how power imbalances can negatively influence the outcome of a mediation. Participants form groups and are tasked with depicting on a poster what dispute resolution means to them. Each group is given resources to complete the exercise including pens and pencils, coloured markers, magazines and scissors. Without informing the participants, the facilitator provides certain groups with more resources than others.

Peter Coleman describes the common outcomes of the exercise in The Handbook of Conflict Resolution: Theory and Practice. He discovered that high-resource groups tend to be unaware of the resource disparity until it is pointed out and the low-resource groups tend to notice their disadvantage immediately. While the high-resource groups are enjoying the exercise and being creative with the tools available to them, the low-resource groups are left to look around the room frustrated. More often than not, the low-resource groups convey a negative portrayal of dispute resolution on their poster, while the high-resource groups tend to depict dispute resolution in a positive and optimistic light.

Coleman also noted a negative response to the resource disparity that flows directly from the actions of the facilitator. During the exercise, the facilitator provides the high-resource groups with ideas and encourages them to be creative. Not only do the low-resource groups witness this but the facilitator makes a conscious effort to ignore the low-resource groups and their requests for additional resources. It is this aspect of the exercise that creates the most angst amongst the low-resource groups. It comes as no surprise that by the end of the exercise the facilitator is not very popular amongst the low-resource groups!

THE ART OF REBALANCING

What can we take from from this exercise and experiences at the mediation table and how can we apply these lessons in practice?

1. Proactive Preparation for a Positive Mindset

The feeling of being at a power advantage or disadvantage can significantly impact a participant’s mindset at mediation and their level of engagement in and satisfaction with the process. Tip: Foresight and preparation help the mediator identify the possible existence of a power imbalance at mediation. Earlydetection of a power imbalance, preferably in advance of a mediation session, allows the mediator to work with the parties to identify the sources of the imbalance and develop appropriate strategies for dealing with them. Taking these proactive steps can help participants arrive for mediation in a positive frame of mind, ready to engage in meaningful negotiations.

2. Keep It Neutral

A mediator wields considerable power, with the ability to worsen an imbalance through their response to it. Tip: The mediator must remain neutral in dealing with an imbalance to maintain the trust and confidence of all mediation participants. A power imbalance can be made worse by a mediator who recognizes its existence but oversteps with a solution. Often overlooked is the impact overzealousness can have on the weaker party, even when the mediator has good intentions. As Phyllis Bernard reminds us in Power, Powerlessness, and Process (published in The Negotiator's Fieldbook), “by veering too much to one side, we invoke condescension and paternalism towards the powerless.” Conversely, the more powerful party can be impacted by overzealousness as well. A sense that the mediator is “teaming up” with the perceived weaker side can quickly lead the mediation into troubled waters, leading one or more of the parties to question the merits of the process and the mediator’s neutrality.Encouraging counsel to share information with the other side is a powerful tool the mediator can use to restore balance without appearing to be playing favourites.

3. Participants Often Know Best

The mediation participants (the parties and their counsel) are often in the best position to identify what they need to address a power imbalance. Tip: The mediator should listen for cues from participants to identify solutions for addressing the imbalance that are appropriate and responsive to the parties needs. To illustrate, while I value the use of the joint session, if a party is uncomfortable negotiating directly with the other side due to a perceived power imbalance in their relationship, I will separate the parties during the course of mediation to neutralize the imbalance.

SUMMARY

Power rebalancing in mediation is a delicate art. A skilled mediator should have the foresight to identify an imbalance and the flexibility and dexterity to implement a plan that will help redress it without compromising their neutrality.

Advances in technology have revolutionized the way we communicate and, to a large extent, relegated face-time to the virtual world. We rely on our devices – computers, tablets, smartphones – to communicate. Texting, emailing and posting content to social media is the norm for day-to-day communication in our personal and professional lives. But, while technology offers us the ability to connect with people faster and, perhaps, more efficiently, do these benefits come at a significant cost?

I was intrigued by Jonathan Franzen’s recent review of a book titled Reclaiming Conversation: The Power of Talk in the Digital Age written by MIT professor Sherry Turkle. The review explores Turkle’s thesis: “Our rapturous submission to digital technology has led to an atrophying of human capacities like empathy and self-reflection.” Turkle proposes that the current generation, with its over-dependence on communicating through electronic devices, is losing the ability to engage in meaningful human interaction. The review cites a recent study that shows a steep decline in empathy, as measured by standard psychological tests, among college students of the smartphone generation.

My last post highlighted some benefits of in-person mediation, with one of the greatest being the opportunity for parties to interact on a human level, to solve fundamentally human conflicts. Success at the mediation table depends on good communication, and the ability to empathize is a critical communication tool. Disputants that can walk a mile in their counterpart’s shoes will be far more inclined to engage in meaningful dialogue that addresses underlying needs and forms the foundation for a responsive resolution.

We often hear that in western society more than 80% of communication occurs through body language and other non-verbal cues, including eye contact, facial expression, inflexion and tone. And, Turkle suggests that in-person conversation helps us recognize the full human reality of others, which is the starting point for empathy. But, with our increased reliance on digital technology to communicate, are we losing the ability to empathize and read non-verbal cues? Might this reliance lead to apprehension to engage in face-to-face dialogue? Will we even have the needed skills to engage in meaningful conversation when the opportunity presents?

Turkle declares that “the time has come to reassert ourselves, behave like adults and put technology in its place.” I embrace this challenge, and believe we could all benefit from taking even a small step back from technology. It is our responsibility to reclaim conversation and make the most of opportunities to connect. Human communication is ultimately about engagement. This means making the time to put our smartphones away, and practicing the art of conversation, as it is meant to be. I have no doubt this practice can help us in our day-to-day lives, and at the mediation table.

Mediation presents an opportunity for disputing parties to engage in purposeful dialogue that can effect change.Changes in opinion, understanding and perspective can have a groundbreaking impact on the mediation process and the outcome of negotiations. Below, I discuss three mediation game changers and their potential impact on effecting change.

Game Changer #1: Information Synthesis

During the course of litigation, parties forage for and gather information that supports and bolsters their position. Typically, this is done through the exchange of documents and oral discovery. By the time the parties get to mediation, particularly if they’ve been through discoveries, their legal theories and positions have become entrenched and hardened. Mediation often presents the parties with the first opportunity to collectively and collaboratively share, weigh and evaluate the entirety of the information amassed on all sides of the dispute.

This process of information sharing and synthesis provides the parties with an opportunity to formulate a more complete view of the conflict and gain enhanced insight into the relative strengths and weaknesses of their case, weigh the chances of success at trial and explore the potential ingredients needed to fashion a fair and reasonable negotiated outcome.

Game Changer #2: Understanding Intentions

Attribution theory teaches us that people tend to see the worst in others and the best in themselves.To illustrate, when a person feels wronged by another, they may infer that the other person’s actions are the result of a character flaw (such as, selfishness, vindictiveness or carelessness). On the other hand, when a person wrongs someone else, they may blame the circumstances (including the lack of better options, the actions of a third party or simply being in the wrong place at the wrong time).

The mediation process encourages disputing parties to challenge their assumptions about one another and explain the intentions behind their own behavior. When each party is able to understand their counterpart’s intentions, they may be more inclined to negotiate with that person. This deeper understanding has the potential to turn an emotionally charged negative exchange into a positive and productive interest-based conversation.

Game Changer #3: Perspective Shift

At its core, conflict involves a difference of perspective. A productive mediation session should offer each disputing party with an opportunity to see the conflict through their counterpart’s eyes, But, parties entrenched in their positions tend to view the conflict only from their own vantage point, with a focus on settlement options that meet their own needs. Parties with this mindset may rush through the early stages of the mediation process - past the information and interests sharing stages - to resolution.Unfortunately, these people miss the heart of the mediation and the opportunity to fully voice, challenge and shift perspectives. Conversely, a party that can acknowledge and understand their counterpart’s perspective will be better equipped to shift from entrenched positions, consider shared interests and explore outcomes that address each party’s needs.

Maximize Mediation

As the old saying goes, there are (at least) two sides to every story – two sets of information, intentions and perspectives. The litigation process discourages shared understanding and movement towards a mutually beneficial outcome.But, utilizing the three game changers in mediation may help to stimulate engagement at the negotiation table, enhance negotiation flexibility, and facilitate the development of more durable, interest-based outcomes.

One of the most interesting parts of my job as a mediator is the opportunity to connect with an endlessly diverse clientele - it’s also one of the most challenging. Trying to grapple with the details of a dispute while recognizing how each participant’s complex cultural influences may be impacting the mediation is a task no mediator should take lightly.

Many of us connect culture with factors such as ethnicity, age, language, religion and gender. But, culture encompasses far more, including education, work/profession, health and ability/disability.

Given this description, how does culture and this notion of ‘inside knowledge’ impact the practice of mediation?

LeBaron and Zumeta discuss one culture, in particular, that greatly impacts mediation: legal culture. This is a culture of vast ‘inside knowledge’, teeming with specialized language, customs and processes. Not surprisingly, three major aspects of mediation are often influenced by legal culture – language, process, and outcomes. While these influences may be positive or negative, it is important to recognize their presence and be able to adapt to them.

Language

Generally, in court-connected mediations, the terms used in legal proceedings are also referenced in mediation. Parties are referred to as ‘plaintiffs’ or ‘claimants’ and ‘defendants’ or ‘respondents’; to describe each party’s point of view, we talk about ‘claims’ and ‘defences’. We use terms like ‘without prejudice’ and ‘liability’. While these terms may help participants understand their roles, the process, and the impact of settlement, they may also alter the way parties perceive themselves and the dispute.

For example, consider how a defendant with little or no knowledge of legal culture may perceive the title ‘defendant’. The word itself can seem intimidating – as if you are a wrongdoer that must defend yourself.

In any dispute, each party sees themselves in the right, with the other side in the wrong. Simply by labeling your opponent a defendant you affirm your own perception of being legally wronged.It’s important for a mediator to recognize and respond to these perceptions.

Process

Many mediators take process cues from legal cultural norms. One common manifestation of this in court-connected mediation is beginning the mediation by hearing first from the plaintiff or claimant. While there is nothing wrong with this practice, it is important to recognize that relying on legal norms to guide the mediation process can limit the success of mediation. It could be that in some cases, hearing from the defendant or respondent first may help diffuse a power imbalance or reduce tension, thus contributing to a more productive session. However, because legal culture can play such a dominant role in mediation process, we may fail to consider adapting the process to suit the particular case.

Another major legal cultural impact on the mediation process is the degree of resistance to sharing information. Bluffing, low-balling, and the tendency to withhold sensitive information, are all aspects of legal culture that could be detrimental to reaching a satisfying outcome, and may impair the caliber of communication at the mediation table. As the guardian of the process, it is up to the mediator to be cognizant of these cultural impacts and craft a process that encourages information sharing and openness.

Outcomes

I often say to mediation participants that nothing is ‘off the table’ when considering settlement options – that mediation offers unlimited possible outcomes limited only by the creativity of the parties. In practice, however, settlement discussions can often come down to money. For example, in personal injury mediation, apart from liability, the paramount question is determining a monetary value for the injuries suffered.

Because litigation settlements frequently involve financial exchanges, legal advisors (and their clients) often come to the mediation table conditioned to seek a financial solution even where underlying party needs cry out for more. While the mediator may promote the boundlessness of options, if the parties confine their thinking to a financial settlement, they may be limited in their ability to consider other options. In this way, the presence of legal culture risks limiting creativity and the consideration of settlement options that may satisfy non-monetary needs.

Look Beyond Legal Culture

LeBaron and Zumeta argue that cultural awareness, particularly of legal culture, must be heightened in order for mediation to live up to the ideals of inclusivity, creativity and collaboration. And, while it may be comfortable to rely on legal culture’s ‘inside knowledge’ to guide your mediation practice, these comforts can come at the cost of restricted creativity and outcomes that fall short of addressing the cultural differences and underlying interests of the parties.

As mediators, to continue to evolve as professionals and achieve client-centred outcomes, we need to remain vigilantly aware of the expansive mosaic of cultural influences that disputants of all kinds bring to the table, not just those defined by legal culture.

Negotiations can go bad in a hurry for any number of reasons - clashing personalities, inflated egos, misunderstandings, incompatible priorities, negative emotions.When things get rough, what's your go-to strategy to get things back on track?I find that taking a step back and detaching for a moment of self-reflection allows me to collect myself, view the interaction objectively and re-focus with renewed energy, perspective and purpose on the common interests (or goals) at the heart of the negotiation. The experts agree. Professor William Ury, of the Program on Negotiation at Harvard Law School, coined the phrase "go to the balcony" in his brilliantly practical book on negotiating with difficult people, Getting Past No. Ury challenges us to imagine negotiating on a stage and then imagine climbing onto a balcony overlooking the stage. The "balcony" is a metaphor for mental detachment. Daniel Goleman, esteemed expert and author on the topic of emotional intelligence, wades into the negotiation arena with thoughts on how "checking-in with your self-awareness" and "re-centering" can help rescue a flagging negotiation. Goleman's insights are drawn from an interview he conducted with George Kohlriesler, a negotiation expert and Professor of Leadership and Organizational Behaviour at IMD (the International Institute of Management Development) in Lausanne, Switzerland. For Goleman and Kohlriesler, success at the negotiation table begins with the establishment of strong and dynamic bonds with your counterpart. You may not like your counterpart, but you need to forge a foundation of respect, trust and collaboration to have negotiation success. Sometimes the bonds that have been formed fall apart, or perhaps haven't been solidly built in the first place. Kolhriesler suggests that in order to build or rebuild a bond, you must first check-in with your self-awareness and engage in an honest assessment of the emotions that are impeding a productive dialogue. Are there negative emotions? If so, what are they and how are they getting in the way? Once you've checked-in and re-centered, circle back to the common interests (or goals) that brought you to the negotiation table. Why are we here? What do we both want to achieve? Next, invite your counterpart to share their take on why things have unraveled. William Ury refers to this stage as "disarming" your counterpart by "stepping to their side." As Ury puts it, if you want your counterpart to listen to you, begin by listening to them. Ultimately, through active and empathetic listening the experts all agree that you will create a connection - a bond - critical to getting the negotiation back on track.

Whatever label you give it - detaching, checking-in, stepping back, going to the balcony - the message is clear: the awareness and ability to take a mental break to regain your ballast is critical to re-focusing on the common goals that brought you to the negotiation table and creating the bond that will foster agreement.